JEFFERSON CITY — To appoint, or to elect? The question is reverberating around the Missouri Capitol, where puzzling out how a midterm opening in the lieutenant governor's office should be filled has taken on new urgency as the current officeholder prepares to start his third term while also seeking a seat in Congress.
Republican Lt. Gov. Peter Kinder and Missouri's other statewide officeholders start new terms Monday. In addition, Kinder is seeking the Republican nomination to replace U.S. Rep. Jo Ann Emerson, who is resigning from Congress. Should Kinder get the GOP's nod and win the southeastern Missouri congressional seat, there would be a vacancy in the lieutenant governor's office and some ambiguity about how to replace him.
Democratic Gov. Jay Nixon says he has authority to appoint a replacement and claims history is on his side. Nixon served four terms as attorney general before becoming governor. The Democratic leader in the state House said he also believes Nixon could appoint a successor to Kinder and questioned whether there would be a dispute if Nixon were a Republican.
Republican legislative leaders contend the governor cannot appoint the lieutenant governor. House Speaker Tim Jones, who is a lawyer, said the vacancy should be filled through an election. Senate President Pro Tem Tom Dempsey said it does not seem the governor can appoint a replacement lieutenant governor, but that "there is not a clear process in statute today to allow for that vacancy to be filled." Dempsey, R-St. Charles, said his preference is a special election.
Another possibility, if Kinder were to leave, is that the vacancy simply would not be filled. In that case, Missouri would make do without a lieutenant governor until after the 2016 election. State records seem to indicate that after Lt. Gov. Wilson Brown died in August 1855 partway through his term, the office remained vacant until after the 1856 election.
Uncertainty about how Kinder would be succeeded has arisen because — unlike other statewide offices — the legal directions seem less specific. The Missouri Constitution spells out how to replace the governor with an order of succession that goes lieutenant governor, Senate president pro tem, House speaker, secretary of state, auditor, treasurer and attorney general. Laws state the governor can pick a replacement if the attorney general, secretary of state, state auditor, state treasurer or a U.S. senator leaves office early.
Meanwhile, the state constitution gives the governor authority to "fill all vacancies in public offices unless otherwise provided by law." But a law states that when there is a vacancy in an elected office "other than in the offices of lieutenant governor, state senator or representative, sheriff or recorder of deeds in the city of St. Louis, the vacancy shall be filled by appointment by the governor."
In all, the legal blueprint appears somewhat muddled.
The lieutenant governor presides over the 34-member state Senate while breaking tie votes, advocates for seniors and military veterans, serves on several state commissions and takes over if the governor must be replaced.
Missouri's most recent lieutenant governor vacancy arose in 2000 when Democratic Lt. Gov. Roger Wilson became governor after the death of Mel Carnahan. After that year's election, Wilson appointed just-elected Democratic Lt. Gov. Joe Maxwell to start his tenure early.
Decades earlier, Democratic Gov. Warren Hearnes in 1969 appointed just-elected Lt. Gov. William S. Morris to fill the remainder of Thomas Eagleton's term after Eagleton left for the U.S. Senate before his term ended. However, the state Senate leader refused to recognize the appointment, called it illegal and threatened to throw Morris out of the chamber if he came to preside. Morris ultimately waited until his elected term began.
Nixon pointed to both examples in claiming authority to appoint a replacement lieutenant governor.
"The two times in recent history where that position has become open for reasons, the governor has appointed the lieutenant governor and those folks served," Nixon said. "I think history would say that authority lies there."
Amid the possibility for a lieutenant governor vacancy, the Republican-led Legislature is moving to spell out a procedure. Bills have been filed in both legislative chambers, and a House committee has scheduled a hearing Tuesday.
Rep. Jason Smith, who also is seeking the Republican nomination to replace Emerson in Congress, is sponsoring legislation that would allow the governor to name an acting official to one of the statewide offices until there can be an election. Whoever is appointed as the acting officeholder would be ineligible to run immediately for the position. Smith, R-Salem, has sponsored legislation previously, and this year's version would appear on ballot this November.
The House speaker said currently there could be an argument about the process for filling a vacancy and lawmakers are happy to clarify.
"You get two lawyers in a room and a judge, and you're going to have to work things out," said Jones, R-Eureka. He added that he believes Nixon's interpretation "of an appointment is incorrect, so we as the lawmakers are going to clarify that situation and make it 100 percent unmistakable."